Monthly Archives: August 2012

Although I hesitate to provide Kim Kardashian or her family any more attention than they already receive for their multiple television shows and daily media appearances, the divorce between Kim Kardashian and her husband Kris Humphries is a “real life” example of a recent post on Iowa Family Law Bulletin. Many couples face the situation Kardashian and Humphries are currently experiencing, when only one person in the relationship wants to divorce.

Divorce v. Annulment

Unfortunately for Ms. Kardashian, Mr. Humphries appears to be stalling their divorce. The couple was married in August of 2011. Kardashian filed for divorce very soon after. Kardashian is apparently hoping for a straightforward divorce, while Humphries is claiming that their wedding (which was televised and received much media scrutiny) was a fraud. The couple had a prenuptial agreement and have no children together. Arguably, their divorce litigation should not take this long.

Kardashian and her publicity/legal team claim foot-dragging and stall tactics by Humphries, including a strange choice by Humphries to deliver a deposition request to Kardashian’s current boyfriend, Kanye West, rather than the more accepted practice of delivery to his attorney’s office. However, Humphries’ legal team argues that Kardashian has not produced certain financial records needed to prepare for depositions.

Iowa Annulment Law

In this particular situation, Humphries is requesting an annulment while Kardashian is requesting a divorce. In Iowa, causes for an annulment are governed by Iowa Code Section 598.29. This section states that a marriage may be annulled for the following causes:

Where the marriage between the parties is prohibited by law.

Where either party was impotent at the time of marriage.

Where either party had a husband or wife living at the time of the marriage, provided they have not, with a knowledge of such fact, lived and cohabited together after the death or marriage dissolution of the former spouse of such party.

Where either party was a ward under a guardianship and was found by the court to lack the capacity to contract a valid marriage.

Fraud as a Cause for Annulment

Unfortunately, there is not much being reported on the specific legal argument Mr. Humphries is relying upon, however, it seems that he believes he was used by Kardashian for television ratings. Kardashian says that she married Humphries for love, however, got “caught up in the hoopla.”

A trial is not expected in the case until next year, and it does not appear that a settlement is likely at this point. One thing is certain – when and if there is a trial, there will be no lack of media coverage!

An editorial in the Huffington Post, written by Micki McWade, a Collaborative Divorce Coach, Psychotherapist, Author and Parent Educator and Collaborative Trainer, addresses the issue of when one spouse has the desire to obtain a divorce and the other does not. McWade suggests that only very rarely are divorces mutual decisions made by couples, and that it is much more likely that one person in the relationship desires a change. The degree to which the non-consenting spouse resists can vary greatly however.

When one spouse wants to slow the divorce process, there are many avenues they can use to do so, however, all will most likely cause legal fees to skyrocket and their marital resources to diminish. If there are children involved, this can cost them more than their financial security, but also their children’s. It may also cause much more animosity throughout the divorce process which would also be unfortunate for any children involved.

Salvaging a Relationship Gone Bad

In her article, McWade addresses many of the emotional issues that are involved in a relationship where one party wants to divorce and the other does not. She believes that if one party has already decided they want to divorce and do not want to make efforts to salvage the relationship, there is very little the other spouse can do to change their minds. McWade suggests that the divorce-minded party may have already been in the divorce “state of mind” for a length of time. Although the idea of a divorce may be shocking or overwhelming to the other party, it may be long overdue for the initiating spouse.

Iowa Divorce (Dissolution) Law

Iowa Divorce Conciliation Efforts and Waiting Periods

In her article, McWade also touches upon something that is reflected in Iowa divorce (or officially called, dissolution) law. Even if one party resists in a divorce, if the other party desires a divorce, they will receive one. In Iowa, a judge may require parties to participate in conciliation efforts for sixty days. Also, there is a waiting period of ninety days between the initial dissolution petition and when the court can enter a final dissolution decree. Although there are circumstances that allow a judge to waive the waiting period, it is generally enforced.

Iowa No-Fault Divorce

Additionally, Iowa is a “no-fault” divorce state. This means that a spouse who wishes to obtain a divorce has no requirement to blame their spouse for any wrongdoing. This allows the divorce to be (hopefully) less contentious and be completed more quickly. This does not mean issues of wrongdoing will not arise in the divorce, especially if child custody issues are involved, however, it does mean that the petitioning party does not have to “accuse” their spouse of anything specific to obtain a divorce.

Clint Nass has appealed the decision of the Iowa District Court for Bremer County (in In Re the Marriage of Noel Ann Nass and Clint Lewis Nass) in regards to the physical care provision of the dissolution decree. It is clear, from the Iowa Court of Appeal’s comments, that this divorce was filled with a fair amount of animosity.

The couple originally met when Noel was a senior in high school and Clint was 26 years old. They shared a common bond of enjoying horseback riding. After marrying in 2005, the couple opened a pet store.

Unfortunately, Clint and Noel experienced some troubling times in the next few years. They suffered from the loss of their infant son shortly after his birth, as well as the birth of another premature baby. Both the pet store the couple opened and their home were destroyed by a flood of the Cedar River in 2008. They were forced to live in a garage with their 9 month old son.

Joint Legal Custody and Sole Physical Custody Awarded

Eventually, by working side and part time jobs, the couple was able to move to an acreage and have a home once again. By the fall of 2009 however, the couple had separated. Noel took primary care of the children because of the work schedule Clint chose at his employer, John Deere, 3rd shift (10:30pm to 7:00am). He did, apparently, have a choice in the hours he worked.

The divorce trial lasted three days and resulted in the parties having joint legal custody of the children and Noel having physical care, with liberal visitation for Clint. This decision is in keeping with Iowa child custody law.

Iowa law requires that the court, “insofar as is reasonable and in the best interests of the child,” shall order the custody award, including liberal visitation rights where appropriate, which will assure the child the opportunity for maximum continuing physical and emotional contact with both parents after the parents have separated and dissolved the marriage, and which will encourage parents to share the rights and responsibilities of raising the child unless physical harm or significant emotional harm to the child, other children, or a parent is likely to result from such contact with one parent.

Affirmation of Lower Court’s Child Custody Decision

In its analysis, the Court of Appeals dispenses quickly with any question of the lower court’s placement of physical care of the children, saying “she, quite simply, can minister more effectively to the long-range best interests of the children.” In stating this however, the court of course considered the relevant factors from In re Marriage of Winter, 223 N.W.2d 165, 166-67. The court made clear that it was “abundantly clear” that Noel had been the primary caregiver, even after the devastating loss of her first child, their business, and their home. Clint’s time with the children was very limited even when they were in his care. His mother, the children’s paternal grandmother, often cared for the children as a result of the work schedule Clint chose to maintain.

Throughout the divorce, Clint has refused to converse directly with Noel. Despite this, Noel has continued to attempt to provide the children with quality time with their father. This is important to the court, as they must consider which parent will encourage the most contact by the noncustodial parent with the children in Iowa. The court notes that Noel has cooperated with Clint under very trying circumstances and that Clint’s interest in the children did not arise until after the couple’s separation and “even then was continually diluted by his other, selfish interests.”

The court affirms, and wholeheartedly at that it seems, the decision of the lower court to have physical care of the children remain with Noel despite Clint’s arguments. Noel was also awarded appellate attorney fees of $1500.

Termination of Parental Rights Ruling

The Iowa Court of Appeals entered a judgment affirming a ruling by Judge Constance Cohen, of the District Court of Polk County, in In the Interest of L.C.H. The juvenile court terminated the parental rights of the parents of a young infant. The father did not appeal the decision. The mother was incarcerated and the child tested positive for marijuana at the child’s birth. The child was removed from the mother’s custody and the maternal grandmother provided care for the child.

The baby was adjudicated to be a Child in Need of Assistance, or CINA. The mother continued to be incarcerated, however, did complete parenting and victim impact classes. While at a halfway house, the mother took advantage of visits with her child. Despite some progress, the court found the mother’s insight into her drug, alcohol and violence was lacking.

1. Except as provided in subsection 3, the court may order the termination of both the parental rights with respect to a child and the relationship between the parent and the child on any of the following grounds:

d. The court finds that both of the following have occurred:

(1) The court has previously adjudicated the child to be a child in need of assistance after finding the child to have been physically or sexually abused or neglected as the result of the acts or omissions of one or both parents, or the court has previously adjudicated a child who is a member of the same family to be a child in need of assistance after such a finding.

(2) Subsequent to the child in need of assistance adjudication, the parents were offered or received services to correct the circumstance which led to the adjudication, and the circumstance continues to exist despite the offer or receipt of services.

h. The court finds that all of the following have occurred:

(1) The child is three years of age or younger.

(2) The child has been adjudicated a child in need of assistance pursuant to section 232.96.

(3) The child has been removed from the physical custody of the child’s parents for at least six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days.

(4) There is clear and convincing evidence that the child cannot be returned to the custody of the child’s parents as provided in section 232.102 at the present time.

l. The court finds that all of the following have occurred:

(1) The child has been adjudicated a child in need of assistance pursuant to section 232.96 and custody has been transferred from the child’s parents for placement pursuant to section 232.102.

(2) The parent has a severe, chronic substance abuse problem, and presents a danger to self or others as evidenced by prior acts.

(3) There is clear and convincing evidence that the parent’s prognosis indicates that the child will not be able to be returned to the custody of the parent within a reasonable period of time considering the child’s age and need for a permanent home.

Unfortunately, the mother had last seen her child 4 months previously, causing the court to find the child “has no significant attachment (to the mother) because of incarceration.” The court also noted the mother has a “severe and chronic substance abuse problem” and that the mother is not willing to admit she has a problem. Without “an admission that there is a problem, change is unlikely.”

Guardianship by Grandmother?

In her appeal, the mother argues that a guardianship by the maternal grandmother is the appropriate course of action rather than a termination of her parental rights. However, the court notes that a guardianship is not a “preferred outcome” for a young infant. The court describes that chaotic conditions in the parent’s lives and comes to the conclusion that the baby would not be able to return to the parents any time in the foreseeable future.

In Iowa, district probate courts have jurisdiction over guardianships. Guardians are responsible for the physical custody of the ward. Unlike conservators, they are not responsible for the ward’s financial decisions.

The baby was thriving under the maternal grandmother’s care, and the grandmother was willing to adopt. So, although the court was not required to terminate parental rights when there is a relative who has legal custody of the child (Iowa Code section 232.116(3)(a)), here the court felt it was necessary. They did not find clear and convincing evidence that termination would be detrimental to the child (Iowa Code 232.116(3)(c)).